Bed of Beaver Lake. 



s P E E c. 



HON. DANIELTD. PEATT, 

OF INI3IA.N^, 

IN THE SENATE OF THE UNITED STATES, MARCH 2, 1872. 



The VICE PRESIDENT. If there be no 
further Senate resolutions, the Senate, as in 
Committee of the Whole, resumes the consid- 
eration of the bill (S. No. 616) to release to the 
State of Indiana the lands known as the bed 
of Beaver lake, io Newton county, in said 
State, on which the Sei*atJ^.j{'ivl}so Ii),di*(m had 
unanimous consent to address the -"Senate. 
Does the Senator desire the bill to be repocted ? 

Mr. PRATT. Yes, sir ; I ask that it may 
be reported. 

The Chief Clerk read the bill, as follows: 

Beit enacted, &c., That the lands in Newton county, 

in the State of Indiana, known as the bed of Beaver 

lake, be, and the same are hereby, released and 

quitclaimed to the State of Indiana. 

Mr. PRATT. Mr. Pre.sident, the bill under 
consideration is one of local importance. It 
proposes, in the briefest possible words, to 
release to the State of Indiana whatever title 
the United States have in the lands known as 
the bed of Beaver lake. But principles are 
involved which make the bill one of general 
importance. It raises the question where the 
proprietary interest and municipal jurisdiction 
reside in the case of the beds of our lakes and 
rivers in the five northwestern States, where 
their shores have been meandered in the pub- 
lic surveys and the lands on their banks and 
margins have been sold. What rights have 
the riparian proprietors acquired? Are those 
rights limited by the lines run and the stakes 
set by the Government surveyors on the banks, 
or have they acquired the right to the soil 
under water to the middle of the lake or river ? 
x\nd if they have not, and the United States 
have sold all their surveyed and platted lands 
in a given State, does the General Government 
still continue to own the beds of the rivers and 
lakes, or has the proprietary interest as well 
as the municipal jurisdiction over them vested 
in the State? The very statement of the ques- 
tion shows its importance. While it has often 
occupied the attention of the courts, Congress 
has so far, I believe, given no expression of 
opinion. 

Nor, sir, will its action in this particular 
case in the passage of this bill set an incon- 
venient precedent. There are peculiar equities 



in this case which make it imperative, what- 
ever the abstract rights of the United States 
may be, that the cession of the bed of the 
lake should be made to the State. Beaver 
lake was never navigable in any commercial 
sense.. It was a shallow pond of water, re- 
mote froifi'.py^c tkoroughfares, surrQ jjjMJed 
by marsl^ija'nS 

times for horse'^ 

valuable only for its fish'. "TlTe large body of 
land surrounding it was taken up by the State 
under the swamp-land grant, and the drainage 
of the lake has been accomplished by the State 
and individuals without cost to the Govern- 
ment, and without objection from any officer 
authorized to speak for the United States. 

P'or years past the Commissioner of the 
General Land Office in his annual reports to 
Congress has informed the country that less 
than two thousand acres of the public lands 
remain undisposed of in the State of Indiana. 
If it be true that having disposed of the pub- 
lic lands in the State, the United States still 
own the beds of our lakes and rivers, it may 
well be asked why should this barren pro- 
prietorship continue, since no laws exist for 
the protection of these rights or the punish- 
ment of trespassers, and since no possible 
benefit can flow from retaining the mere naked 
claim, the very assertion of which would be 
so offensive to the State's sovereignty? Why 
not by general law release them to the several 
States, which may protect them for the general 
good, or if thought best, parcel them out to 
the riparian proprietors, and thus put an end 
to a longstanding controversy? 

I but suggest the question. It is not neces- 
sary that I should argue it. There is sufficient 
in the evidence before Congress to prove that 
whatever may be the abstract rights of the 
United States in the bed of this lake, it should 
without delay quiet the State title by the pas- 
sage of this bill. 

I spoke of the evidence before us. Early 
in the session the Senate adopted a resolution 
offered by me calling upon the Secretary of 
the Interior for all information in his power 
to give touching the drainage of the lake, by 



2 



whom, at what cost, and under what authority 
it had been accomplished ; how much land not 
included in the public surveys had been re- 
claimed ; their value, and by whom occupied, 
and by what title or claim of title ; and whether 
since the drainage of the lake the public sur- 
veys had been extended over it, and if not, 
why not ? On the 1st day of February the let- 
ter of the Secretary of the Interior, transmit- 
ting the report of the Commissioner of the 
General Land Office in response to the reso- 
lution, was laid before the Senate. It is a 
pamphlet of sixty-six pages, and contains all 
the information necessary for our intelligent 
action. In what I say I shall have frequent 
occasion to draw on this report for facts. 

An unhappy controversy has sprung up over 
the reclaimed lands, to which there are three 
parties. One claims that as public lands they 
are subject to the preemption laws, and an 
attempt has been made to enter upon them 
and erect houses with a view to creating pre- 
emption claims. This has been met by resist- 
ance and violence by those in possession or 
claiming title. Another party claim title from 
the State ; while a third claim as riparian pro- 
prietors originally or by derivation. 

The first class ignore all rights founded upon 
the riparian claim unless they are coupled with 
possession in fact and cultivation sufficient to 
entitle those in possession to the benefit of the 
preemption laws. They ignore also the rights 
derived from the State, since, as they claim, 
the State's right is founded upon the riparian 
theory, she having received title from a ripa- 
rian proprietor. They deny that the State, in 
her sovereign capacity, has any other than a 
mere political jurisdiction over the beds of 
the lakes and rivers. In other words, the class 
which seeks to preempt claims that the soil of 
the lake once covered by water is the property 
of the United States, and demands its survey 
that they may assert their right to preempt it. 

I beg the indulgence of the Senate while I 
attempt to discuss the merits of these various 
claims. To do this I must go back to the 
origin of the controversy. 

What is known as the swamp-land act was 
passed by Congress on the 28th of September, 
1850. It gave the States the overflowed lands 
within their limits which were unfit for culti- 
vation and remained unsold at the passage of 
the law. These lands were placed at the dis- 
posal of the Legislatures of the several States 
in which they were situate ; but there was 
the condition stamped on the grant that the 
proceeds, whether from sale or by direct ap- 
f)r()priation in kind, should l)e applied exclu- 
sively, so far as necessary, to the purpose of 
reclaiming the lands by means of levees and 
drains. Of the sixty million acres which have 
been selected and patented to the several 
States under this law, the State of Indiana 
has received 1,354,732 acres. 

On the 29th of May, 1852, the State passed 
a law to regulate the sales of these lands and 
carry into effect the condition of the grant. 
The auditor and treasurer of each county 
were made agents to sell them and receive 



the purchase-money. They could not be 
sold at less than $1 25 per acre, and the 
purchase-money was to be paid into the 
State treasury in trust, to be expended in 
reclaiming the wet lands in the counties 
from which the money proceeded. Upon pre- 
senting the receipt of the county treasurer, 
the purchaser was entitled to a patent from the 
State. In every county having swamp lands, 
the Governor appointed a swamp land com- 
missioner. It was his duty to employ an engi- 
neer, whose business was to make surveys and 
ascertain the best and cheapest methods of 
reclaiming the lands. When this was done, 
the commissioner and engineer were required 
to make a report, how far the lands were capa- 
ble of reclamation, the best mode of doing it, 
and the estimated expense. After this they 
were to let all the work by contract when and 
as fast as the sale of the lands warranted it. 

As 1 have said, the moneys paid into the 
State treasury were to constitute a special fund 
to defray the expenses of reclaiming the lands, 
whether by ditching, diking, or other means, 
and what was left was to be added to the prin- 
cipal of the common-school fund. So confi- 
dent was the expectation that a large surplus 
would remain after satisfying the condition of 
the grant, that Governor Wright, in his annual 
message to the Legislature, predicted that 
$1,000,000 would be added to that fund. 

This pleasant hope was destined to be 
blasted, for such was the reckless and corrupt 
mismanagement of this trust at a period when 
the Democratic party was in the control of 
the State, that not only was the fund lost, but 
the lands were but partially reclaimed. Hon- 
estly sold, and the proceeds honestly applied, 
every acre of the swamp lands would have 
been made dry and productive, and a large 
surplus left for the education of the children 
of the State; but instead of this, not one half 
of the lands have been reclaimed and the fund 
has gone into the hands of dishonest contract- 
ors and officials. 

Twenty years ago Beaver lake, the subject 
of this controversy, covered from fifteen to 
sixteen thousand acres of land. Irregular in 
shape, its greatest length was about seven 
miles, while its greatest width was from four 
to five, and it varied in depth from two to ten 
feet. It was a clear, smooth sheet of water, 
filled with fish, and resorted to by sportsmen. 
It had several islands, the most considerable 
of which was Bogus Island, containing about 
eighty acres. Its name was significant, for 
here, according to tradition, bogus money was 
made. Nature admirably adapted the spot for 
the resort of desperadoes. The country (or 
miles around was marshy, and here the law- 
less were safe from the pursuit of the officers 
of the law. To the north about four miles 
(lowed the sluggish waters of the Kankakee. 
All the lands surrounding the lake were se- 
lected by the Stale under the swamp-land grant, 
and were subsequently patented to it. In the 
survey of the public lands in northern Indiana, 
at an early day, this lake had been meandered. 
The surveys extended to its margin, forming 



> fractional sections around it. Neither the bed 

,. " of the lake nor the islands in it were surveyed. 

-^ It was treated like all other similar bodies of 

■"y water which so abound iu the northern part of 

^ the State, and like the beds of our larger rivers, 

■which were never included in the public sur- 

^^veys. Of course the thing was impracticable 

Well, sir, these lands remained in market 

X for many years, and yet there was no pur- 

■"- chaser. It was not until they had been donated 

to the State, and she had undertaken to drain 

them, that they attracted attention. Then two 

men, Condit and Dunn, proceeded to enter 

every fractional section bordering upon the 

lake. The aggregate of their purchases was 

about two thousand acres. Condit soon sold 

his interest to Bright ; and Dunn and Bright, 

then owning the entire rim of the basin in 

which the lake lay, proceeded to develop their 

scheme. 

As I have shown, the law required that the 
money arising from the sale of swamp lands 
in a given county should be devoted to their 
drainage. Under the influence of these men, 
the swamp-land commissioner who was charged 
by the law with the wise expenditure of the 
fund, located a ditch from the lake to the Kan- 
kakee river, about four or five miles distant. 
The fall from the surftice of the lake to 
the river was twenty five feet, some say 
more. It is not clear that Dunn and Bright 
contributed anything to the ex|iense. It is 
said the ditch was dug but half the distance, 
and a plow opened the remainder of the way ; 
but so great was the rush of water from the 
lake that a channel was soon formed, in places 
a hundred feet wide. 

It is claimed, and is probably true, that those 
owning lands in the vicinity of the lake have 
contributed money from time to time to dig 
the ditch and extend it into the bed of the lake. 
Other ditches were opened to drain water into 
it. The result of this system of improvements, 
covering a period of several years, has been to 
lay bare and reclaim from thirteen to fourteen 
thousand acres of land once covered by the 
lake, some of which is a mere bed of sand, but 
a great part of it, probably ten thousand acres, 
fit for cultivation, and worth from five to ten 
dollars per acre. From one to two thousand 
acres remain undrained. 

These are the facts, as I gather them mainly 
from the evidence before the Senate. 

Now, the purpose of Dunn and Bright in 
thus concentrating in their hands all the lands 
bordering on the lake becomes plain. Their 
theory was that as riparian proprietors their 
patents carried their title to the center of the 
lake, so as to include its bed and islands. 
Accordingly as the waters receded, they pro- 
ceeded to survey all the bed laid bare, and 
made a plat of the entire body, including 
the fractional lots bought of the Slate, rep- 
resenting on their map the lines of the Gov- 
ernment surveys as extending through the 
lake north and south, east and west. They 
divided the whole into forty-acre lots, number- 
ing them from one to four hundred and twenty- 
seven, inclusive, and divided them between 



themselves, Dunn taking the odd and Bright 
the even numbers. The portion which fell to 
Dunn amounted to seventy-eight hundred and 
eighty- eight acres. 

In 1856 a judgment was rendered in favor 
of the Ohio Life Insurance and Trust Com- 
pany against Dunn, Bright, Allen, May, and 
Governor Willard. On this judgment the 
lands of Dunn were levied upon and sold, and 
were conveyed by some arrangement to Aquila 
Jones, the State treasurer, with a view of 
satisfying in whole or in part the indebtedness 
of Dunn to the State. Jones transferred his 
title to the State, and the Legislature ratified 
the transaction ; for in 1865 it passed an act 
for the sale of the lands and to give protection 
to actual settlers thereon. By this process the 
State became substituted as to the title which 
Dunn possessed in the margin and bed of the 
lake. As to that part which bordered upon 
the lake, and which the State sold him, of 
course no question could arise, but as to his 
constructive right to the land formerly under 
water, of course the State inherited his infirm- 
ity of title, if infirmity there were. 

Under the law I have spoken of, the officers 
of the State have sold all the lands which fell 
to Dunn in his division with Bright, and real- 
ized from them $8,500. I count up in the 
pamphlet before me one hundred and thirty- 
five patents which the State has made of these 
lands to purchasers, and this does not exhaust 
the number of the sales made. The men who 
have bought these lands have paid for them, 
and in many cases taken possession and made 
valuable improvements. What the extent and 
value of these improvements are I do not know. 

I send to the Clerk's desk the affidavit of 
Adam VV. Shidler, and ask that it may be 
read. It is part of the evidence transmitted 
by the Secretary of the Interior. 

The Chief Clerk read as follows : 
State op Indiana, Newton county, ss: 

Adam W. Shidler, being duly sworn, deposes and 
says that he is a practical surveyor and civil engin- 
eer; that he has acted in the capacity of county 
surveyor and deputy surveyor of this county from 
its organization to the present time: that he first 
saw Beaver lake, which lies in the northwestern part 
of Newtoncounty.in theyearl851; that at that time 
it was a clear smooth sheet of water, about seven and 
a half miles long and five miles wide, and the water 
was from two to nine feet in depth, and was only 
resorted to by sportsmen for the purpose of hunting 
and fishing; at this time there was only one resi- 
dence on or near the margin of said lake, from the 
fact that the land for many miles in all directions was 
too wet for cultivation ; that in the years 1854 and 
1855 the State of Indiana, by her commissioner, John 
Darrah, excaviited a number of ditches for the pur- 
pose of draining said lake, one of which commenced at 
the margin of said lake, near the corner of sections 
thirty-three, thirty-four, twenty-seven, and twenty- 
eight, township thirty-one north, range nine west; 
and e.'Ctended to the Kankakee river, in section five, 
of said town, a distance of about five and one half 
miles in length, and was excavated to the depth ot 
from three to seventeen feet; soon alter this the 
water in the Lake began to subside until the year 
1859, when it had subsided about two and one half 
feet; at this time one Isaac Hitchcock took a contract 
of deepening, widening, and extending said ditch into 
the bed of the lake, and in the years 1859 and 1860 
extended said ditch about one mile into the bed ot 
the lake, by which the depth and width of said ditch 
were very much increased, but it was not as yet of 
sufficient capacity to carry all the waters from said 



lake as fast as they accumulated from the rain-fall. 
About the year 1861 one Algy Dean and William Bur- 
ton conceived the idea of locating permanently on 
the lake, and extending this ditch still further into 
the bed of the lake, and to improve the lands so as 
to bring them into cultivation. About this time a 
number of other persons came to the lake and be- 
came the owners of land. These persons, in con- 
junction with said Algy Dean, by their joint efforts, 
have extended said ditch about two miles into tlie 
bed of the lake, and have excavated numerous other 
ditches, and built fences, and dwelling-houses, and 
barns, and have cultivated said land and sowed large 
amounts of the bed of said lake in clover and timo- 
thy, and otherwise improving the same, and have 
now increased the capacity of said ditch so as to 
convey all the rain-fall from the same, and so as to 
render the northwestern part good for cultivation. 
I have within twenty days made a survey of said 
lake, and made measurements and estimates of the 
cost of the improvements made on said lake by the 
State of Indiana and her assignees. Said estimates 
are in the words and figures following, namely : 

I find by actual measurement that the main outlet 
ditch is six miles and sixty-five chains in length, 
and from forty-five to seventy feet in width, and 
from two to twenty-four and one fifth in depth, con- 
taining five hundred and nine thousand three hun- 
dred and twenty-seven cubic yards of excavation, 
which would cost at twenty cents per cubic yard the 
sum of S101,865 56, and that the laterals and other out- 
let ditches, all of which are necessary for the present 
reclamation of the lands now in cultivation, contain 
sixty-five thousand one hundred cubic yards of ex- 
cavation ; this, at fifteen cents per cubic yard, will 
amount to the sum of f9,766; and that there are at 
present over thirty-seven miles of fencing, which are 
used to inclose the lands of said lake, which, at fifty 
cents per rod, would amount to the sum of $5, 920; that 
there are at present twenty dwelling-houses on and 
around said lake, which are occupied by families 
who are cultivating some of the lands of said lake, 
or have some of the lands under fence. These 
houses are estimated to be worth the sum of $10,500, 
and there are fruit trees now in bearing where the 
water was deep enough to draw a seine and catch 
fish that are worth S500 ; that the north end of 
said outlet ditch is at present obstructed by 
a deposit of sand which has been accumulating for 
the last five or six years, and that the said accumu- 
lation of sand has now obstructed the mouth or out- 
let of said ditch for the distance of one mile ; that 
I made a survey of said obstruction in September, 
1870, and I made another survey of the said deposit 
within the sixty days last past, and that said ob- 
struction has within the last year filled up sixty 
rods of said ditch, and that a contract has been let 
to responsible parties tor excavating said deposit, 
which will cost the further sum of $1,500, and that 
there has been let to responsible parties a contract 
for extending the aforesaid outlet ditch to the deep- 
est water in the lake, so as to let all the water flow 
freely down the said outlet ditch, and thus reclaim 
the lands which are now covered with water, and to 
keep the spring floods, which last spring covered a 
large portion of the southeast part of said lake, 
from again overflowing said lands. 

ADAM W.SIIIDLER. 

Subscribed and sworn to before me this 16th day 
of September, 1871. 

ANDREW HALL, 
Clerk oj Newton Circuit Court. 



[L. S.J 



Tlie VICE PRESIDENT. The Chair un- 
derslHiids that it is tlie desire of the Senate 
tiiat the unfinished business shall not be called 
up at one o'clock, and not until the Senator 
from Indiana has concluded his remarks. If 
there be no objection, the Chair will not in- 
terrupt the Senator from Indiana at one 
o'clock, but will allow him to conclude his re- 
marks. 

Mr. PRATT. Mr. Shidler, in this state- 
ment, does not discriminate between the lands 
sold by the State and the Bright lands as to 
the location of the improvements; but con- 
sidering the time which has elapsed since the 



State sold her lands, it is fair to infer that one 
half of these improvements are on them. 

Now, sir, although the Siate in conveying 
these lands by patent has inserted no words 
of covenant, does that alter the case on the 
question whether she should defend the title 
of these men, and in case they lose their lands 
indemnify them for their loss ? Her covenant 
is found in the law which authorized their sale 
and guarantied protection to the actual settler. 
It is enough tiiat she claimed to own them, 
and sold them. That, with a sovereignty deal- 
ing with its people, is guarantee enough. 
Had she doubted her title and set forth its 
infirmity in the law authorizing the sale, and 
guarded against recourse by honestly saying 
she proposed to sell just such interest as she 
had, this would have been notice to the world, 
and no one could complain of being cheated in 
his purchase. But she expressed no such 
doubt; she gave no such exhibit; she affirmed 
by the strongest implication that she had the 
right to sell. Her citizens and ail persons 
had a right to infer on reading the law that she 
owned the lands and would protect the pur- 
chasers, and this she must do or forfeit the 
respect of honest men. 

It is not for States to deal deceitfully with 
those who put their trust in them. Justice is 
their crowning attribute. It cannot be doubted 
that the moral sense of the people of Indiana 
will require the Legislature to make full in- 
demnification in case the titles of these men 
fail. This indemnity will not be full without 
returning the purchase-moneyand interest and 
compensating the settler for the impx'ovements 
he may lose. 

But, sir, against this bill it may be urged that 
thus tar 1 have shown that the State's title is 
only Dunn's title, and that his title as to all the 
lands lying in the bed of the lake rests simply 
upon his claim as a riparian proprietor ; and 
it will be asked, is the Senate prepared to con- 
cede the doctrine that a sale of a defined quan- 
tity of land upon the margin of a lake carries 
by construction the title of the purchaser to 
its center? Were this the whole statement of 
the question, as it is not, we might well pause. 
But such was the theory of those who pur- 
chased the land. Upon this principle and none 
other did the original claim of Dunn and Bright 
rest. Mr. Bright asserted this principle in a 
suit brought in the circuit court of the county 
where the lands lie as early as 1857. The 
action was to recover some of the lands form- 
erly covered by water, and this was tlie only 
point in the controversy. I jjave examined 
the very able argument submitted to the judge 
who presided, now one of the judges of the 
Supreme Court, and formerly a member of this 
body. It convinced him, and the claim of 
Bright was sustained — the claim that as a ripa- 
rian proprietor, and to th^e extent that he owned 
lands fronting upon the lake, his right to the 
soil under the war, including the islands, 
extended to its center. The proposition is a 
startling one, and I do not admit its soundness. 
If the State's claim rested on this foundation 
alone, and there were nothing iu the higher 



claim I shall directly put dp, I douM not with 
my convictions of the law jpon this subject 
insist that it should le t-ecognized. 

The arguments pro and con ou Shis riparian 
theory are familiar to the lawyersof this body, 
and I shall not detain the Senate by going 
over them. It has seemed to me that the 
argument of the Commissioner of the General 
Land OfBce on this question, in his report of 
1868, was exhaustive and unanswerable. I have 
it here at page 121 , but shall not trespass on the 
patience of the Senate to read it. If the posi- 
tion contended for be true, then it follows that 
he who buys of the United States lands bor- 
dering on the Mississippi or Missouri river, or 
upon any of the great tributaries leading into 
them, buys the soil under the water to the 
middle of the stream. His patent may call 
for only forty acres, while his actual claim will 
include two hundred or more. If his claim 
be good, he, and he exclusively, is entitled to 
the bed of the river to its middle line, to its 
quarries and mines, to the sand and gravel, to 
its drift and whatever of value the subsidence 
of the waters may allow him to appropriate. 
They are all his, and he may do with them as 
he pleases, so that he does not interfere with 
the navigation of the stream. And this must 
be equally true of all our lakes, great and 
small. Their beds by this theory are all the 
subject of private ownership. 

Now, sir, without going into the legal argu- 
ment, the plain answer to this fanciful theory 
is this: our public lands are surveyed and 
sold in pursuance of a law. They were divided 
into townships, sections, and subdivisions of 
sections, as low as forty acres. They were 
surveyed, the corners established, and the lines 
marked on the trees and measured by a chain. 
The surveyor is charged to note in his field- 
book all the water-courses — mark the expres- 
sion, "all the water-courses over which the 
line he runs shall pass," and also the quality 
of the lands. These field-books, showing the 
corners established, the lines run, and their 
distances, are to be returned to the surveyor 
general, who therefrom causes a description 
of the whole body of the lands surveyed to 
be made out and transmitted to the officers 
charged with their sale. He is also to cause 
a fair plat to be made of the townships and 
fractional parts of townships, describing the 
subdivisions thereof, and the marks of the 
corners. This plat is recorded and kept a 
perpetual record in his office for public inform- 
ation, and copies are sent to the land offices 
where sales are to be made. By these plats, 
showing the corners of every section and its 
subdivisions, the sales are made. It would 
seem too plain for argument in this statement 
of the law, that the register could sell only 
what is marked on the plat for sale, and 
nothing outside of it. It may well be asked, to 
what purpose have these lines been run, and 
these corners established, if land not surveyed 
or platted, and wholly outside of the plat, and 
without description or definition of quantity, 
may still be sold or claimed to be sold? 

I am quoting now from the first law passed 



by Congress in ! 79<''( !^or the survey and sale of 
the lands north wesL 'if the Ohio ceded by Vir- 
ginia Something was said in that law about 
navigable 8trean\s. Thus, the very first rule 
laid down is, that the land shall be divided 
by north and south lines running according 
to the true meridian, and by others crossing 
them at right angles so as to form townships 
of six miles square, unless — and now mark the 
exception — unless where the line of the late 
Indian purchase, or of tracts before surveyed 
or patented, "or the course of navigable 
rivers," may render it impracticable. When- 
ever a line encountered a navigable river, the 
course of the survey in that direction was as 
much arrested as if it had encountered the late 
Indian purchase or land already surveyed. It 
could no more cross the navigable stream 
than it could enter a body of land already sur- 
veyed or sold. 

In that same law, and in section nine, it is 
provided that all navigable rivers within the 
territory to be disposed of should be deemed 
to be and remain public highways, and in all 
cases where the opposite banks of a stream 
not navigable should belong to different per- 
sons, the stream and the bed should be coni- 
mon to both. 

It is hardly necessary to say that in this 
cession of Virginia there was no stream where 
the tide ebbed and flowed, though there were 
many rivers which were navigable. The intent 
of Congress is here plain enough. It was only 
where streams were not navigable, and, as I 
infer, where the lines of the public surveys 
crossed them, that Congress intended the bed 
and stream should be common to the propri- 
etors of the two banks. 

But there is nothing said here or elsewhere, 
so faraslcanfind, in relation to lakes ; and the 
question is. what principle shall govern them ? 

I hold, Mr. President, that the land officers 
can sell just what is surveyed and platted, and 
nothing outside or beyond. They are agents 
with defined powers, and what they do outside 
those powers is void. What the surveyor has 
surveyed and the President by proclamation 
has offered for sale is subject to sale, and noth-- 
ing else. What the Government sells is the 
squares and parallelograms laid down on the 
township plat. Words and pictures are mean- 
ingless if the purchaser, iu buying a piece of 
land whose corners are established and lines 
measured, and a plat of which is made, gets 
land outside these lines and in contempt of 
the corners. 

Take this Beaver lake for illustration. It 
was some seven miles in length. It was never 
surveyed. The lands around it were, and plats 
made. These, as well as the field-notes, 
showed that the lands surveyed extended to 
the lake, but not into it. If the theory con- 
tended for be true, then Dunn in buying a 
fraction of twenty-five acres abutting on the 
lake may urge that the parallel lines inclosing 
his land, instead of stopping at the margin as 
the plat indicates, shall extend three and a 
half miles to the center of the lake and em- 
brace a parallelogram of soil under it of per- 



haps five hundred acres ; and all this notwith- 
standing the corners laid down on the plat 

rked 



by which he purchased and the area mar 
of twenty-five acres as the estimated quantity 
the Government was selling. It is evident that 
such a claim, if it has any foundation, must 
rest upon construction and not upon anything 
expressed in the patent. 

And what is this rule of construction? It 
is that the grantor must be presumed to have 
intended to convey to the center of the lake, 
because there are no words of limitation in 
the patent. But this begs the question. The 
limitation is found in the survey and plat. 
The fallacy consists in likening the grant to 
one made by a natural person. Where a man 
owns land upon the bank of a river and to the 
middle of a stream, he may limit his sale to 
high or low-water mark. He may sell the bed 
separately, or he may sell all he owns. Whether 
he has in a given case sold all is a question of 
construction upon the language used in his 
deed. 1 admit the general rule to be that if 
he sells his land bounding it by the river, it 
will be presumed that he reserved nothing, 
unless there are words manifesting that inten- 
tion. His power to sell the whole is un- 
doubted ; and just here his case diS'ers from a 
register of a land office, whose power is 
restricted to selling the block of land bounded 
by four lines on the plat before him. 

Therefore it is, Mr. President, I have no 
faith that Condit and Dunn bought the bed of 
Beaver lake. When the Government had 
disposed of all the public lands which it had 
surveyed and brought into market, the bed of 
this lake belonged to the United States or to 
the State of Indiana. If to the State, then 
this bill simply confirms her title and settles 
the controversy. 

What then, sir, are the reasons in support 
of the claim of the State? In arguing this 
question I must go back to the time when the 
Commonwealth of Virginia, in the midst of 
our revolutionary struggle and before the Con- 
stitution had its birth, owned the whole of the 
northwestern territory to the Mississippi river. 
It was in 1780 that the old Congress of the 
United States recommended to the several 
States in the Union having claims to waste 
and unappropriated lands in the western coun- 
try a liberal cession to the United States for 
the common benefit of the Union. Virginia 
promptly and nobly responded to the appeal. 
On the 20th of December, 1783, her General 
Assembly authorized her delegates in Congress 
to convey to the United States in Congress 
assemljled for the benefit of the States, all the 
right, title, and claim, as well of soil as juris- 
diction, which that Commonwealth had within 
the limits of her charter, situate to the north- 
west of the river Ohio. 

If it be said that that charter had been many 
years before annulled by solemn judgment of 
the King's Bench, I reply that Virginia still 
laid claim to the land, had conquered it by her 
arms and defended its possession. More- 
over, the Congress recognized the claim in 
the propositioa for its cession. When the 

3iv77-80 
51 



delegates of Virginia proceeded to make the 
deed of cession they did not make an abso- 
lute, unconditional one. No, sir; it was a con- 
veyance upon certain conditions and trusts. 
And now I call the attention of the Senate to 
these conditions. 

The territory so ceded was to be laid out 
and formed into States. They were to be re- 
publican States and admitted members of the 
Federal Union, having the sanrs rights of sov- 
ereignty, freedom, and independence as the 
other States. Certain expenses of Virginia in 
acquiring and defending tlie territory were to 
be reimbursed. Certain French and Cana- 
dian settlers were to have their possessions and 
titles confirmed to them. A certain body of 
land was to be set apart to the officers and 
soldiers of the regiment of General George 
Rogers Clarke. Another body between the 
Scioto and Miami rivers was set apart to sat- 
isfy the bounties promised by Virginia to her 
troops upon the continental establishment. 
And then, sir, the whole imperial remainder, 
so vast in its proportions that since that time 
five great States in the Northwest have been 
carved from it, was by the terms of this deed 
to be considered a common fund for the use 
and benefit of the States then members of the 
Confederation and such as thereafter should 
become members. And these lands were to 
be faithfully disposed of for that purpose ; that 
is, to create this common fund for the benefit 
of all the States. 

Sir, the trusts imposed in this grant are clear 
and explicit. Before the delegates of Virginia 
executed this deed of cession, that Common- 
wealth owned the soil and had sole municipal 
jurisdiction over it. Virginia was its sovereign. 
Her laws were supreme. I cannot find in the 
Articles of Confederation a single power which 
the old Congress could exercise outside the 
limits of the States, but the single one of reg- 
ulating the trade and managing the affairs with 
the Indians not members of any of the States. 
There is not a single assertion of jurisdiction 
besides this. But for this purpose it must be 
admitted the sovereignty of the United States 
extended there. When Virginia parted with 
the soil and municipal jurisdiction she pos- 
sessed, she provided in explicit terms that this 
sovereignty should be held in trust for the time 
being by the United States, but to reappear 
and be vested in the States formed out of the 
territory. For, mark you, sir, it was to be laid 
out and formed into States, and into such States 
as then constituted the Union, and these States 
were to have the same rights of sovereignty as 
Virginia and New York then had, no more 
and no less. They were not to be lesser lights 
in the Union, but full-orbed States, with every 
attribute of sovereignty which the proudest 
possessed. It is clear, therefore, that when 
the time arrived, and a new State carved from 
this territory was admitted into the sisterhood 
of States, the trust of the United States was 
limited and restricted to the simple disposal 
of the lands that remained. There remained 
over the new State such national sovereignty 
only as existed over the other States. What 



is said by the Supreme Court of the United 
States in Pollard's Lessee vs. Hagan et al. (3 
Howard,) is equally true of Indiana. The court 
said: 

"The right of Alabama and every other new State 
to exercise all the powers of govern men t which belong 
to and may be exercised by the original States of the 
Union, must be admitted and remain unquestioned 
except so far as they are temporarily deprived of 
control of the public lands." 

The subject of controversy in that cele- 
brated case was a body of land on the Ala- 
bama river which, at the time the State of 
Alabama was admitted into the Union, was 
below high-water mark. By the receding of 
the waters or by alluvion the land became 
dry, and the United States undertook to con- 
vey it by patent. The court held, first, that 
the shores of navigable waters and the soils 
under them were not granted by the Consti 
tution to the United States, but were reserved 
to the States respectively ; secondly, the new 
States have the same rights, sovereignty, and 
jurisdiction over this subject as the original 
States; thirdly, the right of the United States 
to the public lands, and the power of Con- 
gress to make ail needful rules and regulations 
for the sale and disposition thereof, conferred 
no power to grant to the plaintiffs, who held 
the patent of the United States, the laud in 
controversy in that case. This decision would 
seem to be conclusive upon the question. 

If we turn to the enabling act of Congress 
of April 19, 181G, we find that the inhabitants 
of the Territory of Indiana were authorized to 
form for themselves a constitution and State 
government, and to assume such name as 
they deemed proper ; and that the State, when 
formed, should be admitted into the Union 
upon the same footing with the original States. 
This was the second grand step taken in the 
execution of the trust imposed by Virginia's 
deed of cession. Ohio had already been ad- 
mitted into the Union, and for fourteen years 
exercised the same powers of sovereignty with 
the original States. The people of Indiana 
met in convention on the 10th of June, 1816, 
and by an ordinance accepted the propositions 
of Congress and proceeded to form a constitu- 
tion of State government. 

This, then, Mr. President, is the result: 
when Indiana was admitted into the Union 
she was invested with a sovereignty as com- 
plete over the territory within her borders as 
Virginia ever possessed before her deed of 
cession ; nay more, with the same sovereignty 
and jurisdiction which Virginia possessed 
within her limits as a State. Nothing of 
municipal jurisdiction remained to the United 
States except such as was necessary to sell the 
public lands, prevent trespasses upon them, 
and to shield them from taxation. 

Besides this power to dispose of and make 
all needful regulations respecting the public 
domain, the jurisdiction of the General Gov- 
ernment within Indiana was no greater than in 
any other State. Exclusive legislation and au- 
thority may be exercised by the United States 
only over such places as are ceded by the States 
for the seat of government, or for the purpose 



of forts, magazines, arsenals, &c. The Senate 
will not fail to notice how jealous were the 
people of the States in admitting within their 
jurisdiction the combined national and munici- 
pal authority of the United States. It is limited 
carefully to such parcels of ground as were 
necessary for a seat of government and the 
needful public buildings the Government must 
have in the States. Had it been the under- 
standing that the banks and beds of navigable 
rivers and lakes should be reserved for like 
exclusive legislation, they certainly would have 
been mentioned. 

Now, sir, nearly forty years have passed 
since the public lands in northern Indiana, 
where this lake lies, have been surveyed and 
brought into market. Every foot has been 
sold that the Government thought worth sur- 
veying. Nothing remains there of what was 
ceded by Virginia except the beds of the lakes 
and rivers. These were not surveyed for the 
double reason, I stippose, that they could not 
be, and were not thought fit subjects of pri- 
vate ownership. Does it not follow that the 
municipal jurisdiction of the State must of 
necessity extend over these, and that the 
United States, having executed their trust in 
selling the public domain, have no longer any 
authority and jurisdiction over the shores aad 
beds of the navigable rivers and lakes? 

I do not question of course the power of 
Congress in regulating commerce among the 
States to legislate in any way to promote the 
navigability of these streams. I am not speak- 
ing of that, but of where the eminent domain 
resides as to the shores and the soils tinder 
water. I say, sir, that the sovereignty of Indi- 
ana, and doubtless of every other northwest- 
ern State, has been repeatedly asserted over 
these. Bridges across the rivers have been 
built by Slate authority. Dams have been 
thrown across them to create feeders for 
canals. In numerous cases the State has 
authorized individuals to build dams across 
them for milling or other manufacturing pur- 
poses. Laws have been passed for the pro- 
tection of fish in our lakes and rivers. These 
were so many assertions of her authority and 
jurisdiction over the subject-matter. Has any 
objection even been made by the General Gov- 
ernment? Has Congress ever questioned this 
sort of legislation? No, sir. It has never 
legislated in any other way than to authorize 
the improvement of navigation or to authorize 
bridges which should be post roads, carefully 
providing against any interruption of the nav- 
igability of the stream bridged. 

But I repeat, the assertion of ownership and 
municipal control as against the States over 
the shores and beds of the rivers and lakes has 
never been made by Congress. If the sover- 
eignty and complete authority did not exist 
as I claim, then every interference in the way 
of building dams by the State and authorizing 
them by individuals were so many acts of 
usurpation, and they and the bridges are there 
without right, and those who built them are 
trespassers ; every law regulating the taking 
offish is a usurpation. How could it be other- 



wise? And yet, sir, the Government has stood 
by without objection for nearly half a century 
while the State has been asserting these 
rights. 

Do not forget, Mr. President, that the new 
States were to be admitted upon a footing of 
complete equality with the old thirteen States. 
In which of them, I ask, has it ever been pre- 
tended that the jurisdiction and the authority 
of the United States extended over the shores 
and beds of her lakes and rivers ? New York 
has her inland lakes, her Cayuga, Oneida, and 
Cazenovia lakes. Have the United States ever 
set up any jurisdiction over them ? And sup- 
pose they were drained to-day, would anybody 
pretend that their beds were public domain 
over which we could legislate? Well, sir, in 
this respect, as in all others, Indiana stands 
upon a footing of complete equality with New 
York. 

There is one view more I desire to press, and 
then I will be done. Beaver lake has been 
drained by the State, and drained in pursu- 
ance of a condition imposed in the swamp-land 
grant. I do not suppose the reclamation of 
the wet lands surrounding it would have been 
practicable without lowering the waters of the 
lake. But be this as it may, the ditch which 
turned its waters into the Kankakee was lo- 
cated and dug by State authority. Not a dollar 
has been spent by the General Government in 
these improvements. Thousands of acres have 
been reclaimed and added to the productive 
resources of the State. For years those claim- 
ing to own the bed of the lake have paid State, 
county, and township taxes upon their 
lands. 

And now I come to the practical question: 
Will Congress seek to realize a profit out of 
the bed of this lake? Will it require the pub- 
lic surveys to be extended over it and the 
lands to be sold, since the only value they 
have has been created by the State and her 
citizens. Say there are fourteen thousand 
acres reclaimed : how much money would this 
net to the Treasury after all expenses were 
paid? The sum is too pitiful to be talked 
about. And then, I ask, how shall we dis- 
pose of that parallel case I have cited, where 
the highest court determined that a patent 
from the United Stales in a similar case was 
worthless ? How shall we maintain the equal- 
ity of Indiana with the original States if Con- 



gress shall seize upon and dispose of these 
reclaimed lands? 

Leaving out of view the constitutional and 
legal aspect of this question entirely, and look- 
ing only to the harmonious relations the Gen- 
eral Government desires to maintain with the 
States, and looking beyond that to the simple 
equities of this case, can there be a doubt 
what the Senate should do with this bill? 
Grant, for the argument, that the proprietary 
title to this lake is in the United States. It 
was a barren, worthless proprietorship until 
the State and her citizens uncovered the soil 
and made it valuable. Would it be quite 
becoming in a great nation, which has twelve 
hundred million acres of public domain yet to 
be disposed of, which is inviting actual settlers 
to go upon it almost without money and with- 
out price, to seize upon the bed of this lake, 
redeemed and reclaimed by State enterprise, 
to make a pitiful profit from it ? 

Pass this bill, and the State better than the 
General Government can deal with the con- 
troversies there. Indeed, the controversy will 
cease when the General Government abandons 
all claim of title there. It is only because of 
the belief that the title is in the United States 
to the bed of the lake that men, ignoring the 
patents made by the State, have sought to found 
settlements there under the preemption laws, 
and obtain the lands at $1 25 per acre. They 
will be disappointed ; but I am happy to believe 
they have incurred no great expenses, and they 
will be reconciled, I hope, when they know 
that the cession by Congress is to the State. 

Now, Mr. President, as the Senate has in- 
dulged me in hearing what I had to say in the 
advocacy of this bill, I hope I may trespass 
j upon its indulgence a moment more by asking 
that the bill may be put on its passage. 

Mr. POMEFtOY. I hope we shall have a 
vote on the bill. I asked for its consideration 
once before. 

Mr. LOGAN. I merely rise to second the 
suggestion made by the Senator from Indiana. 
The bill has been reported by the committee 
unanimously, and his remarks have satisfied 
me that the bill ought to pass. 

By unanimous consent, the bill was consid- 
ered as in Committee of the Whole. 

The bill was reported to the Senate without 
amendment, ordered to be engrossed for a third 
reading, read the third time, and passed. 



Printed at the Congressional Globe Office. 




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